27 October 2015

Chairperson: Mr R Mdakane (ANC)

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Meeting Summary

The Deputy Minister of Cooperative Governance and Traditional said Chapter 12 of the Constitution recognised the role of traditional leaders. Parliament would, from time to time, give guidance and define the role of traditional leaders, in particular, aligning certain matters within the structures from the Traditional Affairs Framework Act into the new Bill based on lessons learnt. Secondly, the Bill intended to recognise one of the indigenous communities in South Africa, the Khoisan, who were excluded in the previous bill, as being part of the South African nation and the Constitution recognised the diversity of nations in South Africa and the building of a South African society where individual and group rights were recognised. When the Bill is presented to the nation, there will be public discourse and valid points raised will need to be taken into cognisance. The role that traditional leaders played in fighting colonialism and later apartheid was acknowledged. The new democratic dispensation needed to guide the country in terms of the role and function of traditional leaders.

There were national grievances, one being that traditional leaders felt they were being stripped of their powers and authority while being the customary custodians of customary traditional affairs.

The second contestation was that of land. Even though the Bill did not deal with the land issue, it did deal from time to time on the restorative nature of the distribution and restitution of land. While this was a national grievance it was dealt with in another piece of legislation.

The third contestation was the powers and role of traditional leaders in running courts and judgements but this was dealt with in another Bill.

The fourth was the power traditional leaders enjoyed to collect various forms of fees. However with the existing money bills, quite a number of those items had been centralised or functioned differently from the way they used to function.

Lastly and not much contested except in a few areas was the role of traditional leaders as custodians for culture and traditional practices which no one contested. However there were harmful practices that were a violation of the Bill of Rights and ought to be changed.

The Department’s presentation gave some background to the Bill, spoke to the objectives of the Bill, its limitations, the financial implications of the Bill, definitions, the recognition of leadership of Khoisan communities as well as the withdrawal of recognition, the establishment of Khoisan councils and the administrative and financial support of them, the houses of traditional and Khoisan leaders, the establishment of an advisory committee on Khoisan matters, the contents of the schedules, the consultations the Department engaged in and the tagging of the Bill as a section 76 Bill.

Members said they was concerned about the financial implications of the Bill because the Director General had said that the number of traditional leaders talked about was at this stage a guesstimate, so this was equivalent to being asked to write a blank cheque. Was the matter referred to the Finance and Fiscal Commission (FFC)? Was any detailed cost analysis done by the Commission? How long would the Commission take? Was there any regulatory impact assessment done? Members said they were concerned by the way the Khoisan leadership was being treated differently to other traditional leaders. Members said the Bill said anyone recognised prior to September 2004 was deemed to be a traditional leaders for the purposes of the Act. There was nothing saying that if recognition was withdrawn post 2004 that that person was not a traditional leader. Members asked the Chairperson what the timeline for processing the Bill was.

Members asked what the circumstances were that would lead to the status of senior traditional leaders being raised to a king level. Members asked why the process, which had started 2011, took so long to recognise the Khoi and San. How was the Bill going to deal with the issue of their geographical location? On the research mentioned by the Director General, how was the Khoi and San origins established? Was there evidence to indicate that they had the system of traditional leadership? Could the research be made available to Committee members? Regarding section 4(10) of chapter 2, which stated that a senior traditional leader’s position would became vacant if he was recognised as a king. Why should this position be filled? On the role of traditional leaders in local government, members asked what purpose would they serve as they were only observers at council meetings.

Members noted that only three bills were being repealed. What happened to the provincial Acts and to what extent would they be affected? To what extent did the December 2000 Cabinet Committee resolution pertaining to chapter 7 and 12 of the Constitution impact on Section 81 and the co-option of traditional leaders into municipal councils? Careful consideration had to be given on the extent to which traditional leaders participated at municipal councils as section 81 compromised traditional leaders.

Meeting report

Mr Obed Bapela, Deputy Minister of the Department of Cooperative Governance and Traditional Affairs, said
Chapter 12 of the Constitution recognised the role of traditional leaders. Parliament, from time to time, would give guidance and define the role of traditional leaders, in particular, aligning certain issues within the structures from the Traditional Affairs Framework Act into the new Bill based on lessons learnt. Secondly, to recognise one of the indigenous communities in South Africa, the Khoisan who were excluded in the previous bill, as being part of the South African nation and that the Constitution recognised the diversity of nations in South Africa and the building of a South African society where individual and group rights were recognised. When the Bill was presented to the nation, there would be public discourse and valid points raised would need to be taken into cognisance. The role traditional leaders played in fighting colonialism and later apartheid was acknowledged. In the new dispensation one needed to look at the democratic dispensation which guided the country in terms of their role and function.

There were national grievances, one being that traditional leaders felt they were being stripped of their powers and authority while being the customary custodians of customary traditional affairs.

The second contestation was the issue of the land. Even though the Bill did not deal with the land issue it did deal, from time to time, on the restorative nature of the distribution and restitution of land. While this was a national grievance it was dealt with in another piece of legislation.

The third contestation was the powers and role of traditional leaders in running courts and judgements but this was dealt with in another bill.

The fourth was the power traditional leaders enjoyed to collect various forms of fees. However with the existing money bills, quite a number of those things had been centralised or functioned differently from the way they used to function.

Lastly and not much contested except in a few areas was traditional leaders’ role as custodians for culture and traditional practices which no one contested. However there were harmful practices that were a violation of the Bill of rights and ought to be changed.

The Bill dealt with the structure, the recognition of the Khoisan, and the realignment of the national provincial and local houses, Traditional Councils which were known as Tribal Authorities and defining their role within a democratic dispensation

Mr Charles Nwaila, Director General: Department of Traditional Affairs, gave background to the drafting of the Bill which commenced in 2010. The main objectives were:
- To make provision for the recognition of the Khoisan.
- To consolidate the National House Of Traditional Leaders and Governance Framework Act, 2009 and Traditional Leaders and Governance Framework Act, 2003.
- To address the limitations of the two laws to be repealed.
- To effect consequential amendments to other laws.

He spoke to the limitations of the Framework Act and the National House of Traditional Leaders and Governance Framework Act, 2009.

The Bill contained chapters on interpretation, traditional and Khoisan leadership, the Houses of Traditional and Khoisan leaders, the commission on traditional leaders disputes and claims, the advisory committee on Khoisan matters, general provisions, the code of conduct, the Oath or affirmation, the amendment and the repeal of legislation.

The presentation then spoke to the recognition of leadership of Khoisan communities as well as the withdrawal of recognition, the establishment of Khoisan councils and the administrative and financial support of them, the Houses of Traditional and Khoisan leaders, the establishment of an advisory committee on Khoisan matters, the financial implications of the bill, general matters, the contents of schedules, the consultations the Department engaged in and the tagging of the Bill as a section 76 bill.

Discussion
Mr K Mileham (DA) said he was concerned about the financial implications of the Bill because the DG had said that the amount of traditional leaders talked about was at this stage a guesstimate, so this was equivalent to being asked to write a blank cheque. Was the matter referred to the Finance and Fiscal Commission (FFC)? Was there any detailed cost analysis done by the Commission? How long would the Commission take? Was there any regulatory impact analysis done? He said he was concerned by the way the Khoisan leadership was being treated differently to other traditional leaders. On section 70 on transitional arrangements, he said the Bill said anyone recognised prior to September 2004 was deemed to be a traditional leader for the purposes of the Act. There was nothing saying that if recognition was withdrawn post 2004 that that person was not a traditional leader. He asked the Chairperson what the timeline for the Bill was going forward.

Mr C Matsepe (DA) asked what the circumstances were that would lead to the status of senior traditional leaders being raised to a king.

Mr B Bhanga (DA) said the process had started 2011. Why did it take so long to recognise the Khoi and San if the purpose was to restore their dignity. How was the Bill going to deal with the issue of their geographical location? On research mentioned by the DG, how was the Khoi and San origins established? Was there evidence to indicate that they had a system of traditional leadership or not? Could the research be made available to Committee members? On section 4.10 of chapter 2, which stated that a senior traditional leader, if recognised as king, then the traditional leader’s position became vacant. Why should this position be filled? On the role of traditional leaders in local government, he said he thought there was an understanding on whether or not traditional leaders should sit on local government councils and what purpose would they serve as they were just observers at council meetings.

Mr M Hlengwa (IFP) said he noted that only three bills were being repealed. What happened to provincial Acts and to what extent would they be affected? To what extent did the December 2000 Cabinet Committee resolution pertaining to chapter 7 and 12 of the Constitution impact on Section 81 and the co-option of traditional leaders into municipal councils? In the first instance political parties made decisions with a caucus position and would take political decisions. The role of traditional leaders in a political setup became party to political decisions while not having a vote. If traditional leaders opposed decisions, they would be in conflict with whichever party was in majority in the municipalities. Careful consideration had to be given regarding the extent to which traditional leaders participated at municipal councils. His view was that section 81 compromised traditional leaders.

On the alignment of traditional councillors, Mr E Mthethwa (ANC) asked what would happen to those that establish their council very late since there would be a time limit. He asked what the criteria was for being part of the advisory committee.

Mr Bapela said he hoped that parties would have read the Bill by the time it was being dealt with and that a uniform and integrated principal was what was desired and what the Department was working toward while treating everybody equally.

On the issue of the circumstances and status of traditional leaders, he said the issue was that a dispute mechanism did exist in the past and might arise as the Khoi San communities were integrated, but it was not automatic. It would be informed by investigations and facts.

On the origins of the Khoisan, he said Africa had no boundaries or borders. All born in it were African. The Khoisan were the first in the Cape area but he did not know if they were the first in South Africa.

On Mr Hlengwa’s question, he said it was not a Cabinet decision, it was a Cabinet Committee’s recommendation to the Cabinet and Cabinet did not adopt it.

Regarding municipal structures, he said once the principal Bill was constituted, a municipality’s section 81 was revisited to realign it.

On the numbers, Mr Nwaila replied that there were various researchers that point to the number of Khoisan to be estimated at 360 000 people.

On treating the Khoisan differently, he said there had been no baseline for the Department to use in dealing with the Khoisan. The matter was researched and then went to Cabinet and then returned to the Department. The Khoisan processes were different while other traditional leader processes had been there all along.

He said the structures would be one, for example, there would be one provincial House, one national House. Headmen positions were ones that were there from time immemorial, it could not be invented in 2004. There had been a proliferation of headmen and there was no law to justify the proliferation of headmen.

On elevating a principal traditional leader to kingship, he said it was not going to occur in all instances. It was where one had a newly established kingship. It was a unique situation and would happen once in history.

On provincial Acts, he said that after the Bill was promulgated, provincial Acts would have to be aligned with the bill.

On the Advisory Committee, he said there were many people in South Africa, including higher education institutions, that had done lots of work. The research would be made available to Committee members.

On Mr Mileham’s question on section 70 transitional arrangements, he said that in 1996, when the Constitution was there, there were traditional leaders that were recognised, they would remain as traditional leaders. The Nhlapho Commission was dealing with disputes in the recognition leadership positions.

Mr Bapela said the matter should be noted and if necessary be recognised as a gap that needed to be addressed by the Department.

Mr Nwaila said the Khoisan consultation was a long and thorough process. Sessions were conducted to ensure that thorough consultation had taken place. Hence in 2013 there was an extension of the second period allocated to public hearings to reach as many people as possible.

The Chairperson said this was just the beginning of a long process to finalise the bill.

Mr Bapela said the Bill had been introduced as promised and it was up to the Committee to process the matter.